On 6 March 2018, the Court of Justice of the European Union (the CJEU) delivered its long-awaited judgment in Case C-284/16 Achmea. This case raised the issue of whether an arbitration clause in a bilateral investment treaty (BIT) concluded between two EU Member States (intra-EU BIT) is compatible with European Union (EU) law and, in particular, with the autonomy of the EU legal order.

As discussed in two previous posts (here and here), Advocate General Wathelet delivered, on 19 September 2017, an Opinion in strong support of international arbitration. He found that an arbitration clause such as that at issue in Achmea was not incompatible with EU law. The CJEU disagrees.

As mentioned in a previous post, I wanted to discuss with you some recent U.S. court decisions which have delineated the standards followed by local courts in enforcing annulled arbitral awards.

As is well-known, once an arbitral award is rendered, parties to a dispute often race to the courts: The winning party seeks the enforcement of the award while the losing party seeks its annulment.

Of course, if the losing party is successful in obtaining the annulment of an arbitral award, this situation can seriously complicate and even jeopardize the enforcement proceedings initiated by the winning party. Indeed, the New York Convention provides that a court may refuse to enforce a foreign award if “a competent authority” has set the award aside or has suspended it.

Notably, the wording of the Convention, and in particular the use of the word “may” (instead of “shall”), has given rise to discussions on whether a court remains entitled to enforce an award that has been set aside. This issue is particularly delicate as it often involves policy considerations.

In the United States, several court decisions have recently reassessed the standards to be applied by the courts when enforcing annulled awards.READ MORE

In order for litigants to overcome this difficulty, several jurisdictions in the European Union (including Belgium, the Netherlands, Germany and Ireland) have, over the last couple of months announced plans to establish English-speaking courts which would have jurisdiction to hear international commercial disputes.

The common objective behind all those initiatives is clearly to prepare for Brexit by capturing some of the international litigation business currently located in London.

This trend continues as France just recently announced its intention to open an English-speaking chamber within the Paris Court of Appeal. As is the case in the other jurisdictions that have announced similar plans, this chamber will have jurisdiction to hear disputes with a foreign characteristics (for instance in which at least one of the parties is a foreign entity or if foreign law is applicable). Interestingly, it will also have jurisdiction to hear appeals against international arbitral awards and actions regarding the enforcement of international arbitral awards.READ MORE

On 16 January 2018, the Paris Court of Appeal (the Court of Appeal) rendered an interesting decision in which it applied the international public policy doctrine to annul an ICC arbitral award rendered in 2015 in a dispute between a Russian company (MK Group) and Ukrainian companies (including Onix). The case concerned the litigious transfer of 60% of the shares of Dao Lao (Dao Lao), a Laotian company active in gold mining in Laos.READ MORE

The Dutch Parliament is expected to shortly follow the same trend when it debates a new court reform bill (the Bill). The Bill aims at establishing an English-speaking court system which will have jurisdiction to hear international commercial disputes.

In anticipation of those debates in the Dutch Parliament, I wanted to provide a brief update and outline the main characteristics of this new court system:READ MORE

In the present case, Mr Schrems sued Facebook Ireland Limited (Facebook), the European subsidiary of Facebook Inc., for alleged violations of his privacy and data protection rights, as well as those of seven other Facebook users who had assigned their claims to him. These seven co-claimants were domiciled in the EU as well as in India.

Mr Schrems initiated proceedings in the Austrian courts, relying on the consumer jurisdictional privilege provided for in Article 16(1) of the now repealed Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation). This provision allows consumers (i.e., non-commercial parties) to sue the other party to a contract in the courts of the EU Member State in which the consumer is domiciled. Article 18(1) of the currently applicable Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Ibis Regulation) contains similar terms. Article 15(1) of the Brussels I Regulation (reproduced in Article 17(1) of the Brussels Ibis Regulation) limits this jurisdictional privilege to “matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession“.READ MORE

The case was taken by the widow (Lady Brownlie) of Sir Ian Brownlie QC, a distinguished English scholar and practitioner of international law, who died (together with his daughter) in a car accident while on holiday in Cairo in January 2010. Lady Brownlie and two of their grandchildren were also injured in the accident.

Lady Brownlie brought a series of claims, before U.K. courts, under contract law and in tort (for her own injuries and for her husband’s death) against Four Seasons Holdings Inc. (FS Holdings), the Canadian-based owner of the Egyptian hotel to whom she had booked the excursion.READ MORE